Wulfsohn v. Burden

• Decision Date: 24 November 1925
• Citation: 150 N.E. 120,241 N.Y. 288
• Parties: WULFSOHN v. BURDEN, Inspector of Buildings of City of Mount Vernon.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 288

150 N.E. 120

WULFSOHN

v.BURDEN, Inspector of Buildings of City of Mount Vernon.

Court of Appeals of New York.

Nov. 24, 1925.

Application for peremptory mandamus by Max Wulfsohn to require John Burden, as Inspector of Buildings of the City of Mount Vernon, to approve plans and issue a building permit to erect an apartment house. From an order of the Appellate Division (214 App. Div. 824, 210 N. Y. S. 941) reversing an order of the Special Term and denying the application, applicant appeals.

Order affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

J. Henry Esser, of Mount Vernon, for appellant.

Hugh M. Hewson, Corporation Counsel, and Arthur M. Johnson, both of Mount Vernon, and Lester D. Stickles, of New York City, for respondent.

HISCOCK, C. J.

The appellant Wulfsohn is seeking by peremptory mandamus to compel the respondent Burden to approve plans and issue a building permit for an apartment house which he desires to erect in the city of Mount Vernon. The refusal to issue this permit, which has been sustained by the court, is based upon the fact that the proposed building will violate certain zoning regulations. Appellant challenges these regulations as unconstitutional and void, and thus is framed the question of constitutionality on which we are to pass.

By the statute in relation to cities (Laws of 1909, ch. 26 [Consol. Laws c. 21] as amended), of which Mount Vernon is one, broad authority amongst other things is given to such municipalities to regulate the height and bulk of buildings, to regulate and determine the area of yards, courts, and open spaces, and for such purposes to divide a city into districts and to adopt various other provisions classifying and regulating the use of land within its borders in the interest of the public health, safety, and general welfare. While the appellant has made some question whether this statute authorizes a municipality like the city of Mount Vernon to adopt zoning regulations, he does this rather faintly, and the statute authorizes such action so clearly and broadly that we shall not take time to discuss this question, but shall assume without discussion that it conferred the power upon the city of Mount Vernon to adopt the regulations which have been adopted, if reasonable.

The authorities of the municipality, acting under this statute, have made a comprehensive classification of its territory and have divided the same into six districts, A, B, and C residential districts, A and B business districts, and industrial districts, and have prescribed regulations applicable to the erection and use of buildings and lands in these various districts. We are only concerned with these regulations as they create and regulate the erection of buildings and use of lands in, the first two districts. These fix the boundaries of these two districts, enumerate the classes of buildings which may be erected therein and, as their substantial restrictions involved in this case, provide that in the use of a lot in the A residential district for an apartment house or a hotel the height shall not exceed five stories and that there must be a ‘setback’ from each lot and street line of 50 feet, and in a B residential district of 25 feet, and that there must be left in the rear of the lot as used (this not being confined to these particular buildings) an open space which is in part graduated according to the depth of the lot and height of building and which in the present case would be 90 feet in depth. They only affect new buildings and those which may be reconstructed. Appellant owns a lot situate at the intersection of two streets with a frontage on one of these of 100 feet and upon the other of 300 feet and located in part in the A residential district and partly in the B residential district.

No claim is made that the Legislature has not properly conferred upon local authorities the right to exercise the powers enumerated in the statute which has been cited. But we shall assume that these ordinances were adopted under a general legislative authority and that their constitutional validity was subject to attack by extraneous evidence (Matter of Stubbe v. Adamson, 220 N. Y. 459, 116 N. E. 372), and in accordance with this rule affidavits were presented upon appellant's motion for a mandamus in the efforts respectively to impeach and to sustain the validity of the regulations. While these affidavits probably do not greatly enlarge the scope of the facts of which we might take judicial notice in determining the validity of the ordinances from their face, there are some facts to which reference may properly be made.

As we understand them, the territory now included in these residential districts, and especially the A district, was before the adoption of the zoning regulations in question a residential district almost entirely devoted to and occupied by private one-family dwelling houses. Therefore, the zoning regulations did not have the effect of working any revolution in the character and uses of the territory covered by them, but it is evident that it was their purpose to continue a character and purposes already established and to limit these districts and especially the A district to private residences and to buildings of a character which it was thought would not greatly impair the character of the district as a residential one and to allow buildings such as hotels and apartment houses only under restrictions which it was thought would prevent them from endangering the health, safety and general welfare of those desiring to dwell in such a district. The water and sewage systems in the districts in question are so limited that they would be overtaxed if apartment houses such as appellant desires to erect were largely locatedin these districts, and their construction will impair the value of surrounding property already devoted to private residential purposes. Since the ordinances were adopted they have been obeyed by substantially all builders. The plans filed by appellant for the apartment house which he desires to erect show that the building will be four and five stories in height covering, with the exception of narrow strips of open space, his entire lot, and that it will accommodate on each floor 30 families or, in the aggregate, 144 families or, on an average of 4 persons to a family, nearly 600 people. The regulations in question will prevent him from using in the neighborhood of 50 per cent. of his lot for an apartment house but would not restrict him in its use for many other purposes.

[1][2] Under the circumstances of this proceeding already referred to, as appellant seeks to gain a permit to erect his apartment house by attacking the zoning regulations as confiscatory and unconstitutional, he has the burden of overcoming the presumption of constitutionality applicable to such ordinances by reference not only to facts of which we may take judicial notice but also facts appearing in the affidavits. He must demonstrate that, as matter of law, these regulations are unconstitutional and that there is no permissible interpretation of all of these facts which justifies their adoption as a reasonable exercise of the broad police power of the state. If, on any permissible interpretation of the facts the court could say as a finding of fact that the ordinances could be reasonably adopted, appellant was not entitled to a peremptory mandamus but only to an alternative one, which he did not seek.

For the purpose of disposing of a minor objection to the ordinances hereafter referred to, we shall consider the question first in the form of the query whether the zoning authorities would have had the power to create residential districts devoted to ordinary family residences and exclude therefrom altogether apartment houses of a typical character, for if they would have had this power of exclusion they would have a power of regulation broad enough to cover the restrictions here complained of. People v. Rosenheimer, 209 N. Y. 115, 102 N. E. 530, 46 L. R. A. (N. S.) 977, Ann. Cas. 1915A, 161. In support of such a regulation, we think the zoning authorities could assume, and the courts below could have found, that the orderly and advantageous development of the city of Mount Vernon and the welfare of its citizens would be promoted by a fundamental division of the city into districts devoted respectively to business and residential purposes under which its dwellers might establish homes in the latter districts where they would be free from disturbing conditions and risks and deprivation of health conditions, such as abundant light and air, ordinarily incident to congested business districts; that in the residential districts of Mount Vernon municipal facilities for sewage and water were liable to be overtaxed if the erection of large apartment houses was permitted; that through the construction of apartment houses whereby there would be gathered a large number of people in the space ordinarily occupied by a single family there would result a congestion of population increasing the dangers of traffic, especially to children, and multiplying the chances that through the carelessness of some individual fire and conflagration might be started or disease communicated and epidemics set on their way; that the advantages and value of property devoted to private residences would be impaired. And if we are right that such facts could be found or assumed, we do not think that a court could say as matter of law that a zoning regulation excluding large apartment houses could not be justified. There would be no object in creating a residential district unless there were to be secured to those dwelling therein the advantages and that immunity from risks and danger which would ordinarily be considered the main benefits of such residence.

[3] Of course, zoning regulations are an exercise of the police power, and as we approach the decision of this question ...